United States v. McDade

*Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
July 27, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-51573
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMAICA LATRIN MCDADE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:06-CR-86-ALL
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Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Jamaica Latrin McDade appeals the 188-month sentence
imposed following his guilty plea conviction for possession with
intent to distribute phencyclidine (PCP). He argues for the first
time on appeal that PCP is a Schedule II controlled substance and
that the district court, therefore, erred by using the statutory
maximum set forth in 21 U.S.C. § 841(b)(1)(C) when applying the
career offender enhancement under U.S.S.G. § 4B1.1(b). He also
argues that his trial counsel was ineffective for failing to object

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to the career offender enhancement on the ground that PCP was a
Schedule III controlled substance.
Contrary to McDade’s assertion, PCP is a Schedule II
controlled substance. See 21 U.S.C. § 812(a); 21 C.F.R. § 1308.12.
Accordingly, McDade has not shown that the district court erred by
using the statutory maximum sentence set forth in § 841(b)(1)(C).
Any objection to the application of § 4B1.1(b) on the
ground that PCP was a schedule III controlled substance would have
been frivolous. Accordingly, counsel was not ineffective for
failing to raise this issue before the district court. See United
States v. Glinsey, 209 F.3d 386, 392-93 (5th Cir. 2000); Green v.
Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998).
AFFIRMED.

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